Bombay High Court High Court

Chief Officer vs Bhartiya Nagar Parishad Kamgar on 11 November, 2008

Bombay High Court
Chief Officer vs Bhartiya Nagar Parishad Kamgar on 11 November, 2008
Bench: B. P. Dharmadhikari
                                     1
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH




                                                                    
              WRIT PETITION NO. 682 OF 2007




                                            
                           WITH
              WRIT PETITION NO. 3809 OF 2007
                            AND




                                           
              WRIT PETITION NO. 3810 OF 2007

     WRIT PETITION NO. 682 OF 2007




                                 
     The Municipal Council,
     Chandrapur, through its
                    
     Chief Officer, Chandrapur,
     District - Chandrapur.                    ... PETITIONER
                   
                         Versus

     1. Bhartiya Nagar Parishad Kamgar
      

        Sangh, District Chandrapur and
        Gadchiroli, through its President
   



        Shri Suresh s/o Ganpatrao
        Deshmukh, Tq. Chandrapur,
        District - Chandrapur.





     2. The Director of Municipal
        Administration, Government
        Transport Service Building,
        3rd Floor, Sir Pochkhanwala Marg,
        Worli, Mumbai 400 030.                 ... RESPONDENTS





     Shri M.I. Dhatrak, Advocate for the petitioner.
     Shri A.P. Wachasunder for respondent No.1.
     Shri D.B. Patel, AGP for respondent No.2 .
                         .....




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                                        2
     WRIT PETITION NO. 3809 OF 2007




                                                                    
     The Municipal Council,
     Ballarshah, through its




                                            
     Chief Officer, Ballarshah,
     District - Chandrapur.                    ... PETITIONER

                          Versus




                                           
     1. Bhartiya Nagar Parishad Kamgar
        Sangh, District Chandrapur and
        Gadchiroli, through its President




                                  
        Shri Suresh s/o Ganpatrao
        Deshmukh, Tq. Chandrapur,
                    
        District - Chandrapur.

     2. The Director of Municipal
                   
        Administration, Government
        Transport Service Building,
        3rd Floor, Sir Pochkhanwala Marg,
        Worli, Mumbai 400 030.                 ... RESPONDENTS
      
   



     Shri M.I. Dhatrak, Advocate for the petitioner.
     Shri A.P. Wachasunder for respondent No.1.
     Shri D.B. Patel, AGP for respondent No.2 .
                         .....





     WRIT PETITION NO. 3810 OF 2007

     The Municipal Council,





     Mul, through its Chief Officer,
     Mul, District - Chandrapur.               ... PETITIONER

                          Versus

     1. Bhartiya Nagar Parishad Kamgar
        Sangh, District Chandrapur and




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                                        3
          Gadchiroli, through its President
          Shri Suresh s/o Ganpatrao




                                                                       
          Deshmukh, Tq. Chandrapur,
          District - Chandrapur.




                                               
     2. The Director of Municipal
        Administration, Government
        Transport Service Building,




                                              
        3rd Floor, Sir Pochkhanwala Marg,
        Worli, Mumbai 400 030.                    ... RESPONDENTS




                                   
     Shri M.I. Dhatrak, Advocate for the petitioner.
     Shri A.P. Wachasunder for respondent No.1.
                     
     Shri P.D. Kothari, AGP for the respondents.
                          .....
                    
                                CORAM :       B.P. DHARMADHIKARI, J.

NOVEMBER 11, 2008.

ORAL JUDGMENT :

All these three writ petitions challenge common order

dated 14.12.2006 delivered by the Member, Industrial Court,

Chandrapur, directing the petitioners – Municipal Councils to pay

15% incentive payable in naxal affected areas from August 2002

as per Government Resolution dated 6.8.2002 to its employees.

2. This Court has on 13.8.2007, while issuing Rule,

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permitted the Municipal Councils to pay such allowance to its

employees, if it wanted to implement its own resolution. By

order dated 30.8.2007, this Court has granted interim relief and

stayed the operation and effect of impugned order dated

14.12.2006.

3. The facts are not much in dispute. Respondent No.1 in

all these writ petitions is a Registered Trade Union and had filed

a Complaint (ULPA) No. 65 of 2005 on behalf of its members

spread over in Municipal Council, Chandrapur, Municipal

Council, Mul and Municipal Council, Ballarshah, contending that

by not extending benefit of Government Resolution dated

6.8.2002, to those members, the respective Municipal Councils

have indulged in Unfair Labour Practice falling under item No. 9

of Schedule IV of Maharashtra Recognition of Trade Unions and

Prevention of Unfair Labour Practices, Act, 1971 (hereinafter

referred to as MRTU & PULP Act). The respective Municipal

Councils filed their written statements and opposed the claim. By

common order dated 14.12.2006, the learned Member of

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Industrial Court found that Respondent No.1 – Trade Union

succeeded in establishing that there was unfair labour practice

falling under item No. 9 and present petitioners were found to

have indulged in it by not implementing the Government

Resolution dated 6.8.2002 and subsequent Government

Resolutions dated 18.8.2004 and 7.12.2004. It is to be noted

that the General body of petitioners – Municipal Councils in the

meanwhile had also passed a resolution sanctioning similar

payment as incentive to its employees and the implementation of

resolution was to be done after the approval of State

Government.

4. In this background, I have heard Shri Dhatrak, learned

counsel for the petitioners – Municipal Councils, Shri

Wachasunder, learned counsel for respondent No.1 and Shri

Patel and Shri Kothari, learned AGPs for respondent No. 2 in

respective writ petitions.

5. Shri Dhatrak, learned counsel has contended that the

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learned Member of Industrial Court has erroneously held that

Government Resolutions mentioned above are applicable to the

employees of Municipal Councils. He has invited attention to

these resolutions to contend that these resolutions are applicable

only to employees of State Government and not to employees of

Municipal Councils. He points out that though the Municipal

Councils have passed the resolutions to implement these

resolutions of State Government, the said implementation is

subject to prior approval of State Government and State

Government has not granted such approval. He states that

Respondent No.1 did not approach the Industrial Court with

grievance that the State Government has given necessary no

objection to the petitioners and still the petitioners are not

implementing the resolutions and not paying 15% incentive to its

members. He, therefore, argues that there is non application of

mind by the learned Member of Industrial Court and the

impugned order is unsustainable. He further contends that as the

resolutions are not ipso facto applicable to the petitioners, its non

implementation cannot attract item No. 9 of Schedule IV of

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MRTU & PULP Act and the learned Member of Industrial Court,

therefore, erred in concluding that the petitioners have indulged

in unfair labour practice.

6. Shri Wachasunder, learned counsel appearing for

Respondent No.1 – Trade Union has relied upon the very same

resolutions to urge that the resolutions are not applicable only to

State Government employees. He contends that resolutions are

applicable to various other categories also like employees of Zilla

Parishads, Teaching and Non-Teaching staff of Private un-aided

educational institutions and Colleges. He states that this

illustration of employees covered by Government Resolution

dated 6.8.2002 is only illustrative and not exhaustive. According

to him, when employees of Zilla Parishads or Teaching and Non

Teaching staff working in the town of Chandrapur, Mul or

Ballarshah, where the members of Respondent No.1 – Trade

Union are also working, are entitled to payment of such incentive,

it cannot be contended that the State Government intended to

deny such payment only to employees of Municipal Councils. He,

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therefore, states that as per the narration of various categories in

above mentioned Government Resolutions, the employees of

Municipal Councils must be deemed to be included in this

resolution. In the alternative, he also argues that for the purpose

of these resolutions, employees of Municipal Councils are entitled

to be treated and recognized as Government employees and lastly

he contends that if arguments of petitioners are accepted, it

creates hostile discrimination between two sets of employees who

are otherwise working in similar environment and it would

violate Article 14 of Constitution of India and extension of State

policy decision to members of Respondent No.1 – Trade Union by

the Industrial Court cannot be faulted with. It is his argument

that as the placement and working of employees i.e. members of

Respondent No.1 – Trade Union in Naxalite area is not in dispute

in any way, writ petitions are liable to be dismissed.

7. The respective Assistant Government Pleaders

appearing for the Director of Municipal Administration in all

three matters have supported the arguments of the petitioners.

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They contend that narration of categories of employees to whom

the benefit of payment of incentive is extended is not illustrative

but it is exhaustive. They contend that employees of Municipal

Council are not State Government employees and as Municipal

Councils were aware of this, while passing the resolutions in

favour of their employees, Municipal Councils have expressly

made those resolutions subject to prior approval of State

Government.

They invited attention to communication dated

28.4.2005 issued by the Regional Director of Municipal

Administration, to respective Chief Officers communicating to

them that the Government Resolution dated 6.8.2002 is not

applicable to them and it is not meant for Municipal Councils.

According to them, there is no question of hostile discrimination

because employees of Municipal Councils work in town only and

not subjected to transfer in rural/interior areas. They urged that

the incentive has been provided for and made applicable only to

those employees whose services are transferable outside

Municipal limits i.e. rural areas which are more prone to Naxalite

attacks. In fact, they also tried to show that the area of respective

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Municipal Council is not recognized as relevant for the purposes

of entitlement to present incentive but it is the place of work of

concerned employees, which has been given importance by the

State Government.

8. With the assistance of learned counsel, I have perused

the impugned order dated 14.12.2006. Its perusal itself reveals

that the learned Member of Industrial Court has not considered

all these facets of the controversy. It appears that the learned

Member of Industrial Court has proceeded with premise that

Government Resolutions dated 6.8.2002, 18.8.2004 and

7.12.2004 are straightway applicable to members of Respondent

No.1 – Trade Union. It found that earlier in Government

Resolution dated 6.8.2002, there was a condition which restricted

the payment of incentive allowance to employees working outside

Municipal limits but then that restriction was deleted by letter

dated 5.9.2002. In view of this deletion, it recorded a finding

that the employees within the Municipal limits were also eligible

for payment of incentive. It has then found that by not

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implementing these Government Resolutions and by not paying

incentive to its employees, the petitioners indulged in unfair

labour practice falling under item No. 9 of Schedule IV of MRTU

& PULP Act. Though it mentioned the communication dated

28.4.2005 by the office of Regional Director of Municipal

Administration, to Chief Officer, Chandrapur, Exh. 28, it

concluded that the Director of Municipal Administration did not

take into consideration the clarification issued vide order dated

5.9.2002. It has, therefore, allowed the complaint.

9. The perusal of Government Resolution dated 6.8.2002

shows that the Scheme of paying incentive has been made

applicable to Officers and employees in government service,

officers and employees of Zilla Parishad, full time Teaching and

Non Teaching staff in granted Educational institutions and

Colleges. Earlier, the incentive was specified at fixed rate but it

has been modified and the system of paying allowance at 15% of

basic was introduced with minimum of Rs.200/- and maximum of

Rs.1,500/- per month. It is also apparent that earlier the

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increased incentive was not extended to employees working in

Municipal Corporation or Municipal area situated in Naxalite

affected zone but then that condition was deleted. The effect of

deletion of said condition is, the employees to whom the

incentive allowance was made applicable, became entitled to

receive even if they were working in Municipal Corporation area

or Municipal area. The modification, therefore, does not have the

effect of including employees of Municipal Corporation or

employees of Municipal Council in the categories of employees to

whom Government Resolution is applicable. Because of this

deletion, the employees of four categories mentioned in

resolution dated 5.2.1999 are eligible for its receipt even if place

of their service falls within the Municipal Corporation limits or

Municipal limits. The inference of the learned Member of

Industrial Court that because of such exercise of deleting that

condition, the Scheme for payment of incentive is extended to

employees of Municipal Council is erroneous and perverse.

10. The contention of Shri Wachasunder, learned counsel

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about interpretation of categories mentioned in Resolution dated

5.2.1999 is again liable to be rejected. The four categories

mentioned are already reproduced above. It is to be noted that

the Zilla Parishad is also a local authority like Municipal Council

and still its officers and employees have been specifically

mentioned by the State Government. The contention of learned

AGPs that it is the place of discharge of duty which has been

given paramount importance in said policy by the State

government may also be relevant while considering whether

these four categories are illustrative or exhaustive in nature. But

then the basic question is whether while attempting to find out

indulgence in unfair labour practice under item No. 9 of

Schedule IV of MRTU & PULP Act, the learned Member of

Industrial Court can undertake such an exercise. The argument

of Shri Wachasunder, learned counsel that if the Municipal

employees like members of Respondent No.1 are held as excluded

from said Scheme because they are not covered by four categories

mentioned above and enumeration of categories is held to be

exhaustive, it results in hostile discrimination and violates Article

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14 of Constitution of India also could not have been gone into by

the Industrial Court while trying to find out whether there is any

unfair labour practice under item 9 of Schedule IV of MRTU &

PULP Act. The questions, therefore, need to be left open for

consideration before appropriate forum in appropriate challenge.

In present matter, I am not inclined to hold that while

considering the challenge in item No. 9 of Schedule IV, the

Industrial Court could have through interpretative process

concluded that employees of Municipal Councils are also covered

in Government Resolution dated 5.2.1999. The four categories

are expressly specified and as such it is difficult to hold that

categories not mentioned therein are also included in or are

meant to be covered by said resolution. In any case Municipal

employees who are not employees of State Government cannot be

subjected to said policy decisions via itam 9 of Schedule IV of the

M.R.T.U. & P.U.L.P. Act.

11. Insofar as Municipal Councils are concerned, their

working and administration is controlled by State Government as

also by the Regional Director of Municipal Administration within

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four corners of Maharashtra Nagar Panchayat and Industrial

Townships Act, 1965. Respondent No.2 – Director of Municipal

Administration has expressly communicated to the petitioners on

28.4.2005 that the said Scheme and resolution is not meant for

employees working with Municipal Councils. It is apparent that

Municipal Councils cannot violate such direction issued by the

Regional Director of Municipal Administration and State

Government. The learned Member of Industrial Court has not

given any reasons as to why such direction issued by Respondent

No.2 is illegal and constitutes unfair labour practice under item

No. 9 of Schedule IV of MRTU & PULP Act. It is also clear that

the indulgence by Respondent No. 2 in such unfair labour

practice could not have been considered by the learned Member

of Industrial Court in present facts, as there is no employer –

employee relationship between respondent no.2 and employees

of petitioners.

12. Though there are resolutions passed by Municipal

Councils to extend the Scheme of payment of incentive to its

employees, the Municipal Councils have rightly observed that said

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resolution can not be extended until after approval of State

Government. Such a rider became essential because above

mentioned Government Resolution was not ipso facto applicable

to Municipal Council. The respondent no.1 has not pointed out

either to Industrial Court or to this Court that such an approval

has been given by the State Government at any point after

28.4.2005. It is, therefore, clear that as on date, there is no

material on record to show that benefits of Government

Resolution dated 6.8.2002 or 18.8.2004 or 7.12.2004 are

extended to the members of Respondent No. 1 – Trade Union. In

fact perusal of later two Government Resolutions only reveal that

State Government has declared certain areas or villages as Naxal

infested areas for the purposes of implementation of said scheme

of payment of incentives. It is not in dispute that Municipal areas

of petitioners Municipal Councils are covered by these

resolutions. However, as already observed above, government

resolutions thereby do not become applicable to the employees

working with Municipal Council and, therefore, they are not

entitled to claim 15% incentive.

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13. In the circumstances, I find that the learned Member of

Industrial Court has not properly considered the facts presented

to it by the parties. The impugned common order dated

14.12.2006 is unsustainable and same is accordingly quashed and

set aside. Complaint (ULPA) No. 65 of 2005 filed by Respondent

No.1 is, therefore, dismissed. However, it is made clear that

Respondent No.1 or its members are free to raise appropriate

challenge before appropriate forum to seek application or

extension of this policy decision to them in accordance with law.

It is made clear that this Court under Articles 226 of 227 of

Constitution of India in the matter has only examined the

correctness or otherwise of jurisdiction exercised by the learned

Member of Industrial Court under item No. 9 of Schedule IV of

MRTU & PULP Act. Thus, all writ petitions are allowed. Rule

accordingly, However, in the circumstances of the case, there

shall be no order as to costs.

JUDGE
*******
*GS.

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